2013 D e c i sion s O p inion s of the U nit e d

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D ock e t N o . 12-3747

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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 12

- 3747

_____________

CG; SB, parents of minor children enrolled in the Lancaster School District; WM; LS; DR; LC; AOP; RJ, parents of minor children enrolled in the Reading
School District on behalf of their children, LP, SLB, BB, EE, DER, KC, AO, MJ and GJ, on behalf of all other similarly

si tuated children in Pennsylvania

v.

T HE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION; GERALD ZAHORCHAK, i ts Secretary

CG; SB; LS; DR; LC,

Appellants

___________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 06

- cv

- 0 1523) District Judge: Honorable Yvette Kane

____________________

Argued: September 10, 2013

Before: SMITH, SHWARTZ, and ROTH, Circuit Judges

.

(Filed: November 5, 2013 )

Kevin L. Quisenberry, Esq. [ARGUED] Evalynn Welling, Esq.2 Community Justice Project
429 Forbes Avenue
Suite 800 Pittsburgh, PA 15219 Counsel for Appellant s

Sean A. Kirkpatrick, Esq. [ARGUED] Office of Attorney General of Pennsylvania Strawberry Square
15th Floor Harrisburg, PA 17120

- 0000 Counsel for Appellee s

Sonja D. Kerr, Esq. Public Interest Law Center of Philadelphia 1709 Benjami n Franklin Parkway United Way Building

2 nd Floor Philadelphia, PA 19103 Counsel for Am ici

___________________ _

OPINION OF THE COURT

____________________

SHWARTZ, Circuit Judge

.

I.

Plaintiffs are members of a class of disabled students
who attend scho ols in certain districts in Pennsylvania and who claim that Pennsylvania’s method for distributing special education funds violates various laws, including the Individuals with Disabilities Education Act [“IDEA”], Americans with Disabilities Act [“ADA”], a nd the Rehabilitation Act [“RA”]. After a bench trial, the District Court found that the funding formula did not deprive the class of a free appropriate public education [“FAPE”] as r equired by the I DEA and did not discriminate against th em in
violation o f either the ADA or RA. Plaintiffs do not challenge the District Court’s finding that the funding
formula does not violate the IDEA but do challenge its3 conclusions about their ADA and RA claims

. 1 Although compliance with the IDEA through the provision of a FAPE does not immunize a program or practice from being challenged under the ADA or RA, we agree with the District Court that Plaintiffs did not produce evidence showing that Pennsylvania’s funding program violates the ADA or RA and

will thus affirm.

II.

Under the IDEA, states that provide special education funds are eligible for federal funds to implement state

- wide special education programs that guarantee a FAPE to eligible
disabled children. 20 U.S.C. § 1412(a)(1)(A). To this end, Pennsylvania enacted 24 P.S. § 25

- 2509.5, which sets forth its special education funding formula. Under the formula, each
school district receives , among other things, a base supplement

, which is calculated by taking the total amount of base supplement money available and apportioning it among all districts based on the average daily membership of the district from the prior year under the assumption that 16% of
students i n each district are disabled.

The class relevant to this appeal encompasses “ all identified spe cial

- needs students attending schools with a 17% or greater enrollment of special needs students and with

a [market value/personal income ratio] of .65 or greater ” (hereinafter the “class districts”). 2 A f t er trial, the District Court found that the major ity of children in Pennsylvania
attend schools in districts where the disabled students
constitute 15% or less of the district’s student population (hereinafte r the “nonclass districts”). Plaintiffs’ expert, Dr. Bruce Baker, provided evidence that the ave rage special education subsidy per special education student in the class

1 Plaintiffs asserted other claims for which judgment

was entered in favor of Defendants either on summary judgment or after trial but they do not appeal these rulings.

2 The District Court certified a s econd c lass that was comprised of disabled students with limited English proficiency [“LEP”] who attend sch ool districts that have a 10% or greater population of LEP students. Claims on behalf on this class are not being pursued in this appeal.4 totaled $3327 and the average special education subsidy per special education student who attended schools in nonclass districts totaled $4108. Thus, students in the class, namely

t hose who attend schools in districts where the disabled student population exceeds 17% , receive less funding per student than nonclass students.

Aside from evidence showing differences in funding per student, Dr. Baker provided evidence that: (1) students in class districts who received individualized educational plans 3
[“IEP” ] under the IDEA scored lower on Pennsylvania’s standardized reading and math tests than IEP students in

nonclass districts ; 4 and (2) the graduation rates for IEP
students in class di stricts was lower than the rate for IEP
students in nonclass districts

. 5 Dr. Baker did not, however : (1) provide evidence about or evaluate the relationship between the receipt of a FAPE and funding levels; (2) consider the other funding sources that dist ricts received or
how districts allocated resources; (3) evaluate the appropriatene ss or implementation of the IEPs for students in either class or nonclass districts; or (4) evaluate the adequacy of the services provided. Moreover, Plaintiffs produced no

3 An IEP has been described as the “primary mechanism” for implementing a FAPE. W.B. v. Matula , 67 F.3d 484, 492 (3 d Cir. 1995). It is developed by a team of educators, specialists, and the student’s parents to set forth a plan that will “enable the child to receive meaningful educational benefits in light of the student’s intellectual potential” and unique needs

. Sh ore Reg’l High Sch. Bd. of

Educ. v. P.S. , 381 F.3d 194, 198 (3d Cir. 2004) (internal quotation marks and citations omitted).

4 The District Court heard evidence concerning the Reading, Lancaster, Allentown, York City, and Harrisburg
school districts. The re was insufficient evidence to show that students attending the Reading and Allentown School
Districts were members of the class.

5 In discussing the standardized test performance and graduation rates, the District Court did not use the words
“disabled students

, ” but rather described the students as those

who receive IEP s . It is understood that these students would be protected under the laws at issue in this case.5 evidence to show that any student was deprived of a service because of Pennsylvania’s funding formula

.

Aside from Dr. Baker, the District Court heard testimony from parents and/or educators of six students.
Five of the students attended school in nonc lass district s and
one attended school in a class district. The District Court found that Plaintiffs had failed to produce a single witness to testify that an IEP for any student was affected by a lack of funding or that any child had been denied a FAPE as a result of the funding formula, and stated that even if a student had been denied a FAPE, that denial necessarily was “the result of problems with the components of individual programs rather than systemic violations” and could have been remedied by

ta king advantage of existing administrative procedures, not by increased funding. 6 App. 48. In short, the District Court concluded that Plaintiffs did not show that the funding formula systematically denied students of a FAPE in violation
of the IDEA. The District Court further observed that while the evidence from Dr. Baker concerning the different educational outcomes for special education students in the
class districts was “compelling,” App. 49 , this evidence was of limited value in this case because D r. Baker could not “directly tie funding levels to a denial of FAPE.” Id

.

With respect to Plaintiffs ’ ADA and RA claims, the
District Court observed that Plaintiffs ’ claim that they were denied access to education services was based on the “same allega tions and theories that underlie their IDEA claim.”

6 The class student’s parent testified about

dissatisfaction at certain times with c ertain matters, such as the delay in commencing speech therapy during one academic year, the quality of the adaptive gym class, and the child’s access to computers, but the parent presented no testimony that any of these issues arose due to funding, and th ere was no evidence presented that these issues were emblematic of a systemic problem. As to the parents of students in nonclass districts, they too testified about having raised concerns about services that they sought for their children. They testified that their concerns were largely addressed and, to the extent a concern remained unaddressed, they provided no testimony that it was due to funding.6 App. 59 . Acknowledging that there are circumstances in
which a school could comply with the IDEA and yet fail to comply with the ADA and the RA

, id

. at 60 n.23, the District

Court found based upon this record that “ [ b ] ecause Plaintiffs have failed to establish a violation of the IDEA, and because the Section 504 and ADA claims are inextricably linked to the IDEA claims,” they did not establish a violation of the

ADA or RA

. App. 59. As a result, the Dis trict Court entered judgment in favor of Defendants on all claims. Plaintiffs appeal only the District Court’s judgment on the ADA and

RA claims.

When reviewing a judgment entered after a bench trial, we exercise plenary review over the District Court’s conclusions of law and review the District Court’s findings of

fact for clear error. Battoni v. IBEW Local Union No. 102 Emp. Pension Plan , 594 F.3d 230, 233 (3d Cir. 2010).

Because Plaintiffs do not challenge any of the District Court’s findings of fact , we accept the findings as true and exercise plenary review over the District Court’s legal conclusions.

III.

The IDEA governs the affirmative duty to provide a public education to disabled students, while the ADA and RA embody the negative prohibition a gainst depriving disabled students of public education. W.B. v. Matula , 67 F.3d 484,
492

- 93 (3d Cir. 1995). Thus, the IDEA provides a remedy for “inappropriate educational placement decisions, regardless of discrimination,” while the ADA and RA prohibit and provide a remedy for discrimination. 7 Hornstine

7 The ADA provides:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Moreover, the relevant regulations state
that:7 v. Twp. of Moores town , 263 F. Supp. 2d 887, 901 (D.N.J. 2003) (plaintiff received a FAPE but policy that sought to deny her valedictorian status was nonetheless discriminatory under the ADA and RA).

A public enti ty, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability

--

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from
the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; [or]

(iii) Provide a qualified individual with a
disa bility with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others . . . .

28 C.F.R. § 35.130(b)(1)(i)

- ( iii). The RA provides:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance . . . .

29 U.S.C. § 794(a).8 Fa ilure to provide a FAPE violates Part B of the

IDEA 8 and generally violates the ADA and RA because it deprives disabled students of a benefit that non

- disabled students receive simply by attending school in the normal

course

— a free, appropriate public educ ation. 9 See Andrew

M. v. Del. Cnty. Office of Mental Health and Mental
Retardation , 490 F.3d 337, 350 (3d Cir. 2007)

. Indeed, in many cases, a plaintiff’s sole theory of RA and ADA discrimination is that the defendant school failed to provide a

FAPE. Id

. Failing to provide a FAPE in violation of the IDEA, however, is not the sole basis on which a student may bring a claim of discrimination under the ADA and RA. In fact, the IDEA itself states that it should not be “construed to

restrict or limit the ri ghts, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.” 20 U.S.C. § 1415( l ). Thus , the IDEA does not restrict a student’s ability to pursue claims under the ADA
and RA

, and compliance with the IDEA does not automatically immunize a party from liability under the ADA

or RA. See K.M. v. Tustin Unified Sch. Dist.

, 725 F.3d 1088,

8 The IDEA requires states receiving federal special education assistance to “establish and maintain procedures in

ac cordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.” 20 U.S.C. § 1415(a).

9 Providing a FAPE may also demonstrat e compliance with the RA. For instance, in D.K. v. Abington Sch. Dist.

, this Court examined the school’s actions and found that it took proactive steps to provide the plaintiff assistance (such as extra time for assignments and a specialist) and provide a FAPE, and thus complied with the RA by reasonably accommodating a handicapped child to ensure meaningful access to and participation in educational benefits. 696 F.3d 233, 252

- 53 (3d Cir. 2012). In that case, “a finding that the

school district did not deny D.K. a FAPE [was] equally dispositive of [the plaintiff’s] § 504 claim.” 696 F.3d at 253

n.8

.9 1102 (9t h Cir. 2013 ); Ellenberg v. N.M. Military Inst. , 478 F.3d 1262, 1281

- 82 (10th Cir. 2007); Hornstine , 263 F. Supp.
2d at 901

.

Plaintiffs take no exception to the District Court’s finding that they received a FAPE or its conclusion that the funding scheme do es not violate the IDEA. Rather, they now
assert that D efendants violate d the ADA and RA, not based upon an alleged failure to provide a FAPE, but on other grounds.

With limited exceptions, 10 the same legal principles govern ADA and RA claims. To prove a claim under either

the ADA or RA , Plaintiffs must show that: (1) they are handicapped or disabled as defined under the statutes; (2) they are otherwise qualified to parti cipate in the program at issue; and (3) they were precluded from participating in a

p rogram or receiving a service or benefit because of their disability

. Chambers ex rel. Chambers , 587 F.3d at 189.

T he statutes ’ respective causation elements differ

. See 42 U.S.C. § 12132 (“by reason of such disability”); 29 U.S.C. § 794(a) (“solely by reason of her or his disability”). The RA allows a plaintiff to recover if he or she were deprived of an opportunity to participate in a program solely on the basis of disability , while the ADA covers discrimination on the basis of disability, even if the re is another cause as well. 11 To

10 One difference between the ADA and RA is that to bring a claim under the RA, a plaintiff must show that the allegedly discriminating entity receives fed eral funding.
Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of
Educ. , 587 F.3d 176, 189 n.20 (3d Cir. 2009). There is no dispute that Defendants receive federal funds and are therefore subject to the provisions of the RA. Another
difference invo lves the causation element, which will be
examined later in the discussion.

11 Because t he RA’s causation requirement requires disability to be the sole cause of discrimination, an alternative cause is fatal to an RA claim because disability would no longe r be the sole cause. See, e.g.

, Menkowitz v. Pottstown
Mem’l Med. Ctr. , 154 F.3d 113, 125 (3d Cir. 1998). The existence of an alternative cause, however, may not10 satisfy either causation requirement, Plaintiffs must prove that they were treated differently based on the protected
character istic, namely the existence of their disability. Th is is
because the “main thrust” of the ADA and RA “is to assure handicapped individuals receive the same benefits as the non

handicapped,” Easley v. Snider , 36 F.3d 2 97, 305 (3d Cir. 1994) , as well as to prohibit discrimination against one “subgroup” of disabled people as compared to another subgr oup if the characteristic distinguishing the two subgroups is the nature of their respective disability. Id

. at 306 (finding no ADA or RA violation because there was no “discrimination against a subgroup of the group of people who are physically disabled” ); cf. Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 598 n.10 (1999) (stating that discrimination may exist among members of the same general protected class). In other words, Plaintiffs must show that they have been deprived of a benefit or opportunity provided

to non

- disabled students or a group of students with some other category of disability , because of their disability

. They
have not done so. 12

necessarily be fatal to an ADA claim so long as disability “played a role in the . . . decis ionmaking process and . . . had a determinative effect on the outcome of that process.” New Directions Treatment Servs. v. City of Reading , 490 F.3d 293, 300 n.4 (3d Cir. 2007) (reversing the denial of summary judgment in favor of plaintiff in part becaus e the District Court improperly applied the RA’s sole causation requirement to plaintiff’s ADA claim, which required only “but for” causation).

12 There is no dispute that Plaintiffs arguably satisfy certain elements of a claim under the ADA or the RA,

name ly: (1) they are disabled; (2) they are otherwise qualified to participate in school activities; and (3) as to the RA claim specifically, the school receives federal financial assistance. As to the causation element, Plaintiffs have presented some
evidenc e that educational performance (as measured by test scores and graduation rates) in class districts is lower as compared to non

- class districts, but they did not prove that lack of supplemental funding is a cause or the sole cause of those discrepancies an d that these funding decisions were based on disability.11 The core of Plaintiffs’ claim is that Pennsylvania’s funding formula distributes supplemental special ed ucation
funds in a manner that gives school districts with higher numbers of disabled students less supplemental funding per disabled student than those districts with lower numbers of
disabled students. Even assuming that this scheme has a disparate imp act on certain disabled students

, 13 and even if
the i nequity stems at least in part from the location of their school, this alone is insufficient to prove a claim under the RA or ADA. Indeed, the Supreme Court has “reject[ed] the

boundless notion that all disparate

- impact showings constitute prima facie cases under” the RA

. Alexander v. Choate , 469 U.S. 287. 299 (1985). Rather, as Alexander instructed, the Act requires that “an otherwise qualified handicapped individual must be provided with meaningful a ccess to the
benefit” offered. Id . at 301. Thus, to establish liability, Plaintiffs must prove that the qualified individual has been deprived of meaningful access to a benefit to which he or she
was entitled.

Plaintiffs here have failed to produce ev idence to show that the funding formula deprived the class me mbers of

a program, benefit, or service that was provided to the

13 Judge Roth notes that she does not consider the disparate impact of the funding mechanism here to be an “even if” assumption. She concludes that this funding mechanism subjects students with di sabilities to disparate treatment “by reason of” their disability. 29 U.S.C. § 12132; 42 U.S.C. § 794(a). Pennsylvania specifically selected a funding formula that depends, in part, on its assumptions
about the concentration of students with disabilities . The funding formula therefore takes the student’s disability status as a relevant metric in distributing funds. Having done so, the formula then provides less funding for some students with a disability vis

- à

- vis others

— the very essence of a disparate impact claim. See Olmstead

, 527 U.S. at 598 & n.10 (noting that discrimination prohibited by the ADA includes policies
that create differential effects between the same class of individuals); Helen L. v. DiDario

, 46 F.3d 325, 336 n.21 (3d Cir. 1995) (same ).12 disabled students who attend schools in the nonclass districts. The District Court’s unchallenged factual findings support the

co nclusion that there is an absence of evidence that any class member was deprived of a service available to nonclass
members. 14 Thus

, based on this record, we are compelled to reject Plaintiffs ’ claim that the use of the 16% figure and its resulting dispari ty in per student funding for students in class districts as compared to nonclass districts violates the ADA or

RA

.

IV.

For the foregoing reasons, we will affirm the judgment
of the District Court.

14 As the District Court appropriately noted, Plaintiffs produced performance metrics that appear to show that the special education students in Pennsylvania are not making the type of progress that one would hope they could achieve. That said, the role of a federal court is to evaluate the evidence under the governing law. Here, the evidence adduced did not show that these differing outcomes were the result of the funding formula and thus, Plaintiffs have not
demonstrated on this record that the f ormula violates the RA

or ADA.